Report of the Commission to Consider Legal Procedures
to deal with Terrorist Activities in Northern Ireland

Report of the Commission
to consider legal procedures to deal with terrorist activities in
Northern Ireland

Chairman: Lord Diplock

Presented to Parliament by the Secretary of State for Northern
Ireland by Command of Her Majesty
December 1972

Cmnd. 5185

Published in London by, HER MAJESTY'S STATIONERY OFFICE, 1972

SBN 10 151850 1

Copyright notice:

Crown copyright material has been reproduced under licence from the Controller of Her Majesty's Stationary Office.
End-Users may access the Material and download it onto electronic, magnetic, optical or similar storage media provided that such activities are for private research, study or in-house use only.
End-Users must not copy, distribute, sell or publish the material.

To the Right Honourable William Whitelaw, M.C., D.L.,M.P., Her Majesty's Secretary of State for Northern Ireland.

1. We were appointed to consider "what arrangements for the
administration of justice in Northern Ireland could be made in
order to deal more effectively with terrorist organisations by
bringing to book, otherwise than by internment by the Executive,
individuals involved in terrorist activities, particularly those
who plan and direct, but do not necessarily take part in, terrorist
acts; and to make recommendations".

2. Our appointment followed upon the statement on security policy
issued by the Northern Ireland Office on 22 September 1972, and
was announced in full in a further statement on 18 October 1972.
We held our first meeting on 20 October. Since then we have
held a number of meetings, in private, during which we have heard
evidence and discussed our findings.

3. From the outset we have treated our task as urgent. What we
have learnt in the course of it about the conditions under which
the ordinary criminal courts in Northern Ireland have to carry
out their functions, and about the developments in the pattern
of violence which have taken place even since we were appointed,
has only served to increase our sense of urgency. It has not
been any part of our function to inquire into individual complaints
about the behaviour of members of the armed forces or the police
in carrying out their duties of preventing and detecting terrorist
crime or apprehending offenders. We are aware that complaints
have been made. With violence so rife and political passions
so strong, we should have been surprised if they had not, whether
with justification or for purposes of propaganda; but we have
not invited particulars of these nor have any been volunteered
inresponse to the invitation to submit written evidence
to us contained in the statement of 18 October. We have confined
our attention to the legal procedures which are, or could be made
available, for dealing with terrorist activities. Unlawful abuses,
by individual members of the security forces or the police, of
any of the procedures which we recommend, if they should occur,
would be criminal offences or civil wrongs. They can be dealt
with by criminal and civil proceedings in the courts against the
offenders themselves.

4. Infact we have received only three written representations.
The bulk of our evidence has been oral and was taken from people
with responsibility for the administration of justice in Northern
Ireland, but we have also heard from representatives of the Civil
and Armed Services. Almost all the evidence was heard in London,
but our Chairman made two visits to Northern Ireland, each lasting
two days, during which he met members of the security forces on
the ground. Like those who have been responsible for inquiries
in the past in which there have been considerations of security,
we do not intend to publish the evidence we have received nor
the names of those who submitted it.

5. We are grateful to those who have given us the benefit of their
advice and experience, and particularly to our Secretaries, Mr.
J.F. Halliday of the Northern Ireland Office and Mr. A.
H. Hammond of the Home Office. We have worked them hard to enable
us to complete our Report within seven weeks of our being appointed.
We owe a lot to them.

6. Although in one sense there has been an intermittent state
of emergency in Northern Ireland since it first became a separate
province we regard the emergency which led to our appointment
as that which has resulted from the escalation of terrorist activities
since 1969. Our recommendations are intended to deal with this
situation and to continue in effect only so long as it persists.
Whether all of them should be so limited in duration is not for
us to recommend.

7. In the following Chapters we have set out at greater length
the conclusions which we have reached and the reasons for them.
Those conclusions may be summarised as follows:

(a) The main obstacle to dealing effectively with terrorist
crime in the regular courts of justice is intimidation by terrorist
organisations of those persons who would be able to give evidence
for the prosecution if they dared (paragraphs 12-20).

(b) This problem of intimidation cannot be overcome by
any changes in the conduct of the trial, the rules of evidence
or the onus of proof, which we would regard as appropriate to
trial by judicial process in a court of law (paragraphs 21-26).

(c) Fear of intimidation is widespread and well founded.
Until it can be removed and the personal safety of witnesses
and their families guaranteed, the use by the Executive of some
extra-judicial process for the detention of terrorists cannot
be dispensed with (paragraph 27).

(d) Detention of terrorists is now subject to an extra-judicial
process which provides important safeguards against unjust decisions;
but however effective these may be in fact, they can never appear
to be as complete as the safeguards which are provided by a public
trial in a court of law (paragraphs 28-33).

(e) It is therefore necessary to consider whether any changes
can be made in criminal procedure which, while not conflicting
with the requirements of a judicial process, would enable at least
some cases at present dealt with by detention to be heard in courts
of law (paragraph 34).

(g) Trials of scheduled offences should be by a Judge of the High
Court, or a County Court Judge, sitting alone with no jury, with
the usual rights of appeal (paragraphs 35-41).

(h) The armed services should be given power to arrest
people suspected of having been involved in, or having information
about, offences and detain them for up to four hours in order
to establish their identity (paragraphs 42-50).

(i) Bail in cases involving a scheduled offence should
not be granted except by the High Court and then only if stringent
requirements are met (paragraphs 51-57).

(j) The onus of proof as to the possession of firearms and explosives
should be altered so as to require a person found in certain circumstances
to prove on the balance of probabilities that he did not know
and had no reason to suspect that arms or explosives were where
they were found (paragraphs 61-72).

(k) A confession made by the accused should be admissible
as evidence in cases involving the scheduled offences unless
it was obtained by torture or inhuman or degrading treatment;
if admissible it would then be for the court to determine its
reliability on the basis of evidence given from either side as
to the circumstances in which the confession had been obtained
(paragraphs 73-92).

(l) A signed written statement made to anyone charged.
with investigating a scheduled offence should be admissible if
the person who made it cannot be produced in court for specific
reasons, and the statement contains material which would have
been admissible if that person had been present in court to give
oral evidence (paragraphs 93-100).

(m) A secure institution should be provided as a matter
of urgency in order to accommodate, when the juvenile court so
directs, people aged under 17 years who are remanded in, or committed
to custody having been charged with or convicted of offences connected
with terrorist activities (paragraphs 101-109).

(n) The grounds upon which a young person may be remanded
or sentenced to prison should be extended so as to include cases
in which the gravity of the offence makes confinement in any other
place unsuitable (paragraph 110).

(o) The mandatory minimum sentence of six months in a remand
home for riotous behaviour by juveniles should be removed, giving
the court a discretion to pass such a sentence for less than six
months (paragraph 111).

(P) The power of a juvenile court to sentence to a remand
home for up to one month should be extended to enable such a sentence
to be passed for any period up to six months (paragraph 112).

(q) The limitation on a court's power to sentence a juvenile
to detention for such a period as it thinks fit only when the
offence is one for which an adult might be sentenced to imprisonment
for 14 years or more should be removed during the emergency (paragraph
113).

CAIN
contains information and source material on the conflict
and politics in Northern Ireland.
CAIN is based within Ulster University.